EPA Must Review Species Risks From Pesticides, Court Says

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By Tiffany Stecker and Alan Kovski

The EPA cannot bypass assessing pesticide impacts on endangered species, even for new, relatively low-risk products, a federal appeals court ruled June 30.

The U.S. Court of Appeals for the District of Columbia Circuit did not knock cyantraniliprole off the market by vacating the registration—welcome news for DuPont Co. and Syngenta Crop Protection LLC, which make and market the pesticide. The pesticide is used to kill insects threatening citrus crops and blueberries.

The opinion also addressed the question of what court has jurisdiction over Endangered Species Act cases involving registration of pesticides for use ( Ctr. for Biological Diversity v. EPA, D.C. Cir., No. 14-1036, 6/30/17 ).

The appeals court said it was the right venue, rather than a district court, because the Federal Insecticide, Fungicide and Rodenticide Act’s grant of exclusive jurisdiction to appeals courts on registration review is “more specific” than the citizen-suit provision in the Endangered Species Act.

Remanded But Not Vacated

The court remanded to the Environmental Protection Agency the registration of cyantraniliprole for consultation with the U.S. Fish and Wildlife Service and the National Marine Fisheries Service on risks to endangered species.

The registration was not vacated because the court accepted the EPA’s assessment that the pesticide would reduce risks to mammals, birds, fish, and honeybees relative to the currently registered alternatives.

DuPont offered only a minimal statement in response to the ruling: “We are reviewing the court’s decision and will determine next steps in this matter.”

The ruling was 2-1. Judge Arthur Randolph filed a dissent arguing that the environmental activist groups lacked standing to sue because they could not claim harm, given that the pesticide would reduce risks. The majority view, written by Judge Karen Henderson, said the groups had standing because cyantraniliprole was assessed as highly toxic to two insect species protected by the Endangered Species Act.

Species Consultations Wanted

Amanda Goodin, an Earthjustice attorney who helped litigate the case for the environmental-group plaintiffs, told Bloomberg BNA the important outcome of the case was that it affirmed the EPA must take the Endangered Species Act into account when considering pesticides for registration.

“We’ve been litigating this issue for close to two decades now,” Goodin said.

The EPA is moving in the right direction, she said. The agency has been working on developing procedures for combining Endangered Species Act consultations with registrations.

The plaintiffs in the case were Center for Biological Diversity, Center for Food Safety, and Defenders of Wildlife, represented by Goodwin and Patti Goldman of Earthjustice. Justice Department trial attorney Travis Annatoyn argued the case for the EPA.

To contact the reporters on this story: Tiffany Stecker in Washington at tstecker@bna.com; Alan Kovski in Washington at akovski@bna.com

To contact the editor responsible for this story: Rachael Daigle at rdaigle@bna.com

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